- Fellow #HRpuckhead John Jorgensen shared one of his wry witticisms on Facebook yesterday on the heels of the NLRB ruling that student athletes at Northwestern University were employees, and entitled to a vote to determine if they should be represented by a union for purposes of collective bargaining.
“I just love listening to sportscasters discuss labor law as if they know what they are talking about.”
John’s observation aside, there was some decent reporting and analysis out there, including this as reported by ESPN:
In a potentially game-changing moment for college athletics, the Chicago district of the National Labor Relations Board ruled on Wednesday that Northwestern football players qualify as employees of the university and can unionize.
NLRB regional director Peter Sung Ohr cited the players’ time commitment to their sport and the fact that their scholarships were tied directly to their performance on the field as reasons for granting them union rights.
Ohr wrote in his ruling that the players “fall squarely within the [National Labor Relations] Act’s broad definition of ’employee’ when one considers the common law definition of ’employee.'”
Ohr ruled that the players can hold a vote on whether they want to be represented by the College Athletes Players Association, which brought the case to the NLRB along with former Wildcats quarterback Kain Colter and the United Steelworkers union.
Game Changer or Delay of Game?
This release from Indiana University was also pretty good. They discuss the following issues:
Here’s a quick summary of the salient points
- Football players weren’t viewed as being primarily student due to the fact they receive compensation and their coaches exercise a high degree of control over schedules.
- The ruling only applies to students at private schools. Employees of state funded universities aren’t covered under the National Labor Relations Act.
- Questions remain open if the facts applied to the analysis applied to football players would apply to all other student athletes under Title IX, as explained by Kenneth Dau-Schmidt, the Willard and Margaret Carr Professor of Labor and Employment Law at the IU Maurer School of Law.
If this decision is upheld and college football players at private universities begin to organize, Dau-Schmidt added, there is a good question of how this system would work consistently with the Title IX requirement of equal athletic opportunities for women.
“Where there is a positive cash flow in college athletics, it’s usually associated with men’s football and basketball, not other sports. At the bigger schools, men’s football and basketball revenue supports the other athletic programs. Would Title IX mean that the football players have to negotiate benefits for all athletes and not just themselves? That would make for a very curious system of collective bargaining.
Getting that first contract takes a long time
What no one has mentioned so far is this. So far, all the players have done is win a ruling that they are entitled to vote to decide whether or not they want to be represented by a union. Setting aside all other likely challenges, the NLRB still has to hold the election, and a majority of players will have to vote in favor of the union in order for them to win the right to bargain for a collective bargaining agreement. And then they have to negotiate and agree to a collective bargaining agreement.
Initial collective bargaining agreements are notoriously difficult to obtain. Many times, workers vote for a union and then never obtain a collective bargaining agreement. In this situation, many of the current student athletes will have graduated and moved on into the real world by the time any contract is reached. I know of one current situation where a Teamsters local has been bargaining for more than two years to get a first contract in a distribution warehouse. Just imagine how complex the negotiations for student athletes will be compared to that.
This story has a long way to go before we see how much of a game changer it actually will be, especially without a vote being held yet, and with the difficulties many unions face in obtaining initial contracts.